Argument Preview: Deciphering the factual basis of a conviction in United States v. Swift, No. 16-0407/AR
CAAF will hear oral argument in the Army case of United States v. Swift, No. 16-0407/AR (CAAFlog case page), on Wednesday, November 16, 2016, at 9:30 a.m. The case presents three issues regarding the evidence of the appellant’s convictions of indecent acts with a child, the third of which was specified by the court:
I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.
II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.
[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.
Specialist (E-4) Swift was twice convicted of two specifications of indecent acts with a child in violation of Article 134. The first conviction was reversed on appeal in 2012 because the Government failed to allege a terminal element (noted here). At a rehearing before a general court-martial composed of a military judge alone, Swift was again convicted and he was sentenced to confinement for 11 years, reduction to E-1, and a dishonorable discharge.
The charges against Swift alleged that he committed indecent acts with his daughter on two occasions: the first in 2003 and the second in 2007. Swift had admitted to touchings during the charged time periods, but he asserted that both were inadvertent (the first because he thought he was touching his wife and the second because it occurred during a dream about a former girlfriend). Swift’s statement was admitted into evidence against him without objection from his defense counsel. The Government also offered evidence of additional touchings, seemingly (though perhaps not exclusively) as uncharged misconduct under Mil. R. Evid. 404(b) and 414. One of these other touchings occurred in a van.
But the parties don’t agree on whether the touching in the van was charged or uncharged misconduct.
The Army CCA affirmed the findings and sentence, outlining the facts of the case as:
Appellant was convicted of sexually assaulting his natural daughter, KS. On one occasion, appellant rubbed his four-year-old daughter’s vagina over her clothing while they were cleaning the inside of the family van. On another occasion, appellant massaged his daughter’s vagina while she was lying in bed with her mother.
App. Br. at 10 (quoting CCA op.). Swift contends, however, that the van incident was uncharged misconduct because “the government specifically charged appellant with the incidents contained in his confession.” App. Br. at 12. The Government responds that:
[The daughter’s] testimony concerning appellant’s indecent acts in the van and in bed with her mother are the same indecent acts alleged on the charge sheet.
Gov’t Br. at 9.
In short, Swift and the Government disagree about whether he was convicted of an indecent act in a van, or whether testimony about touching in a van was admitted as evidence of uncharged misconduct.
The Government’s brief characterizes this disagreement as “essentially . . . a variance between pleadings and proof.” Gov’t Br. at 8. Yet Swift’s brief doesn’t assert a variance, and his reply brief argues that approaching this as a variance “mischaracterizes the granted issue and fails to address the Army Court’s affirmance of the findings and sentence on uncharged misconduct.” Rep. Br. at 2.
It seems impossible to decide any of the granted issues without first clarifying exactly what acts are the basis for Swift’s convictions. One would expect the charge sheet and the findings to clearly identify the factual basis for the convictions, particularly considering that the military is a notice-pleading jurisdiction. But that notice seems to be absent from this case. That’s very surprising, considering that Swift’s convictions were already reversed once for insufficient notice in the charges.
• ACCA opinion
• Blog post: Two interesting CAAF grants involving the hearsay rule
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview